TaxTMI 
TaxTMI 
2009 (7) TMI 1143
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....from him from time to time. According to the complainant, on 20th November, 2000, all four of them got issued a cheque bearing No. 227739 drawn on Indian Bank, Sonepat in the sum of Rs.24,92,115/- in discharge of their liability towards him. The complainant presented the cheque for payment to his bankers, which was returned unpaid on 29^th December, 2000 with the remarks "Account closed". Thereafter, on 17th January, 2001, the complainant got a legal notice issued to all the four accused asking them to pay the cheque amount. In their reply to the legal notice, the accused denied having any business dealings with the complainant as also the issue of cheque in question by any one of them. Their stand was that no such cheque was ever signed, issued or got issued by them at any point of time in favour of the complainant. 4. Dissatisfied with the response to the legal notice, the complainant filed a complaint under Section 138 of the Act against the afore-noted four persons. Paragraph 3 of the complaint, which contains the gist of complainant's case and has a bearing on the issue involved in this appeal, reads as follows: "That the complainant handed over the cheque No. 227739, dt....
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....on under Section 482 of the Code in a case where the complaint ex facie lacked the basic ingredients of the offence under Section 138 of the Act for which the appellant has been made to stand trial. It was contended that admittedly, the cheque in question, purportedly issued by the appellant, was from an account not maintained by him with the Indian Bank but by one Ms. Shilpa Chaudhary and therefore, the basic ingredient of Section 138 of the Act was missing. It was also urged that since the said bank account had already been closed on 3^rd November, 2000, there was no question of the subject cheque being issued in favour of the complainant by the appellant on 20th November, 2000. It was pleaded that the filing of the complaint under the said provision is an abuse of the process of the Court and therefore, the High Court ought to have quashed the complaint. 7. Per contra, learned counsel appearing on behalf of the complainant, supported the impugned order and submitted that having issued the cheque to the complainant under his signatures by making a false representation that the account was maintained by him, the appellant had duped the complainant. It was contended that at this....
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....r liability. 9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled: (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; (ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier; (iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (vi) the drawer of such chequ....
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....trary jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases, where the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. [See: Janata Dal Vs. H.S. Chowdhary & Ors. (1992) 4 SCC 305, Kurukshetra University & Anr. Vs. State of Haryana & Anr. (1977) 4 SCC 451 and State of Haryana & Ors. Vs. Bhajan Lal & Ors. 1992 Supp (1) SCC 335] 14. Although in Bhajan Lal's case (supra), the court by way of illustration, formulated as many as seven categories of cases, wherein the extra-ordinary power under the afore-stated provisions could be exercised by the High Court to prevent abuse of process of the court yet it was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of the circumstances in which such power could be exercised. 15. The purport of the expression "rarest of rare cases" has been explained very recently in Som Mittal Vs. ....